No. 16-01

In the Supreme Court of the United States

_________

WYATT FORBES, III

Petitioner,

v.

TEXANSAS,

Respondent. _________

On Writ of Certiorari to

the Supreme Court of Texansas

_________

BRIEF FOR THE RESPONDENT _________

TEAM NUMBER 4

Counsel of Record

Department of State

Texansas, Txs. 00012

(555) 555-5555

State@Texansas.Gov

i

QUESTIONS PRESENTED

I. Whether the lower court was correct when they found that a statute that is discretionary

and allows the court to decide on a case-by-case basis did not violate the Eighth

Amendment ban on cruel and unusual punishment.

II. Was the Appellate Court of Texansas correct when it upheld a sentence of life

imprisonment without the possibility of parole for a juvenile defendant who committed a

heinous crime of murder in the second degree, which does not require intent?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................................ i

TABLE OF AUTHORITIES ......................................................................................................... iii

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......................................1

STATEMENT OF THE FACTS .....................................................................................................2

SUMMARY OF THE ARGUMENT ..............................................................................................4

ARGUMENT ...................................................................................................................................6

I. THE EIGHTH AMENDMENT’S BAN ON CRUEL AND UNUSUAL PUNISHMENT

DOES NOT PROHIBIT DISCRETIONARY SENTENCING OF A JUVENILE TO

LIFE WITHOUT PAROLE .................................................................................................6

A. The sentence of juvenile life without parole is not cruel and unusual punishment

because the evolving standard of decency demonstrates that there is a national

consensus in support of the sentence .......................................................................7

B. Juvenile life without parole is not excessive because the Eighth Amendment’s

proportionality requirement ensures that juveniles are given an opportunity to

present mitigating factors in order to ensure individualized sentencing ................12

II. LIFE IMPRISONMENT WITHOUT PAROLE FOR A JUVENILE DEFENDANT

WHO COMMITS THE CRIME OF FELONY MURDER IS CONSTITUTIONAL

PURSUANT TO THE EIGHTH AMENDMENT ............................................................15

A. Felony murder is an excepted rule that is recognized in forty-eight states because

it is imperative to prevent inherently dangerous felonies and the resulting deaths

that often follow .....................................................................................................17

B. The plain meaning of Texansas Penal Law §125 (2016) mandates a charge of

murder in the second degree where a defendant commits felony murder, which

does not require the intent to take a life but only that a life be taken ....................18

C. Life without parole for a defendant is constitutional because it is not grossly

disproportionate to the defendant’s crime of felony murder even as a juvenile ....22

CONCLUSION ..............................................................................................................................25

iii

TABLE OF AUTHORITIES

CASES

Atkins v. Virginia, 536 U.S. 304 (2002) ...................................................................................7, 8, 9

Coker v. Georgia 433 U.S. 584 (1977) ............................................................................................6

Edmund v. Florida, 458 U.S. 782 (1982) ................................................................................22, 24

Graham v. Florida, 560 U.S. 48 (2010) ................................................................................ passim

Harmelin v. Michigan, 501 U.S. 957 (1991) ......................................................................... passim

Kennedy v. Louisiana, 128 S. Ct. 2641 (2008) ..........................................................................9, 12

Miller v. Alabama, 132 S. Ct. 2455 (2012) ............................................................................ passim

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) ....................................................................11, 15

Patterson v. New York, 432 U.S. 197 (1977) .................................................................................19

Penry v. Lynaugh, 492 U.S. 302 (1989) ..........................................................................................8

People v. Washington, 62 Cal.2d 777 (1965) ................................................................................17

Roper v. Simmons, 543 U.S. 551 (2004) ........................................................................9, 12, 16, 23

Rummel v. Estelle, 445 U.S. 263 (1980) ........................................................................................19

Solem v. Helm, 463 U.S. 277 (1983)..............................................................................................12

Stanford v. Kentucky, 492 U.S. 361 (1989) .....................................................................................8

Tison v. Arizona, 481 U.S. 127 (1987) ..............................................................................17, 22, 23

Trop v. Dulles, 356 U.S. 86 (1958) ..................................................................................................7

STATUTES

Model Penal Code § 2.02(2)(c) ......................................................................................................21

Model Penal Code § 210.2 .............................................................................................................21

Texansas Penal Law §125 (2016) ......................................................................................15, 17, 18

Texansas Penal Law § 135 (2016) .................................................................................................19

Texansas Penal Law § 160 (2016) .................................................................................................19

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. VIII ...............................................................................................4, 6

iv

OTHER AUTHORITIES

Brian J. Fuller, General Law Division: Case Note: Criminal Law—A Small Step Forward in

Juvenile Sentencing, But is it enough? The United States Supreme Court Ends Mandatory

Juvenile Life without Parole Sentences; Miller v. Alabama, 132 S. Ct. 2455 (2012), 13 Wyo. L.

Rev. 377, 392 (2013) .....................................................................................................................13

David Crump & Susan Waite Crump, In Defense of the Felony Murder Doctrine, 8 Harv. J.L &

Pub. Pol’y 359, 372 (1985) ............................................................................................................18

Emily C. Keller, Constitutional Sentences for Juvenile Convicted of Felony Murder in the Wake

of Roper, Graham & J.B.D., 11 Conn. Pub. Int. L. J. 297 (2012) .................................................17

Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403, 501 (2011) ................17

Joshua P. Gilmore, Murder Felony is Felony Murder: How the Nevada Supreme Court’s

decision in Nay v. State reflects the growing misconception surrounding “afterthought” robbery,

9 Nev. L.J. 672 (2009) .............................................................................................................15, 17

Kallee Spooner, Juvenile Life without Parole, Undergraduate Review, 8, 74-80 (2012) .............11

The Campaign for the Fair Sentencing of Youth, Facts and Infographics about Life Without

parole for Children http://fairsentencingofyouth.org/what-is-jlwop/ ......................................10, 11

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Amendment VII to the Constitution of the United States

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.

Texansas Penal Law § 125 (2016)

A person is guilty of murder in the second degree when […] he commits or attempts to

commit robbery, burglary, [or] kidnapping […] and, in the course of and in furtherance of

such crime or of immediate flight therefrom, he […] causes the death of a person other

one of the participants.

Texansas Penal Law § 135 (2016)

A person is guilty of kidnapping in the first degree when he abducts another person and

when […] the person abducted dies during the abduction [.]

Texansas Penal Law § 160 (2016)

A person is guilty of robbery in the first degree when he forcibly steals property and

when, in the course of the commission of the crime or of immediate flight therefrom, he

[…] causes serious physical injury to another person who is not a participant in the crime;

or […] is armed with a deadly weapon.

2

STATEMENT OF FACTS

On December 1, 2015, defendant-appellant Wyatt “Trey” Forbes, III (hereinafter

“defendant”), was convicted of murder in the second degree, robbery in the first degree, and

kidnapping in the first degree by a jury of his peers. R. at 1. At the time, the defendant was 15

years old. R. at 1. Due to the severity of the crime and outrage from the public, the defendant

was tried as an adult. R. at 4. At the sentencing hearing, the trial court sentenced the defendant to

life imprisonment without the possibility of parole. R. at 4. Subsequently, the defendant filed a

petition attempting to obtain a writ of habeas corpus in the Appellate Court of Texansas. R. at 3.

The state of Texansas moved to dismiss the petition and the Appellate Court granted that

dismissal. R. at 3. The defendant appealed the dismissal of his petition to the Appellate Court of

Texansas and it affirmed the dismissal. On January 1, 2016, the Supreme Court of the United

States granted the appellants’ writ of certiorari. R. at 2.

On October 1, 2014, the defendant’s actions lead to the death of 6 month old baby girl,

Madison Taylor. He met up with some friends at a local park where he ingested synthetic

cathinone, which is a drug commonly known as bath salts. R. at 3. He stole this drug from a

nearby convenience store and then went back to this same store to steal some more. R. at 3. To

do this, he disguised himself with his sweatshirt and went into the store with a large screwdriver

and a pair of nunchuks. R. at 4. While the defendant was in the store, the clerk recognized him as

a prior shoplifter and chased him outside the store. From there, the defendant hid in an alley

behind the store. R. at 4.

The defendant remained hidden until Pamela Taylor pulled her car into the parking lot of

the convenience store. Pamela Taylor, the mother of 6 month of old baby Madison, left her 2012

Toyota Corolla running to go inside and buy diapers. Ms. Taylor left the car running, with the

3

doors unlocked, because Madison suffered from colic and she did not want to wake her up by

turning the car on and off. The defendant saw the car pull in, climbed in to the front seat and

drove away. The store clerk saw the defendant get into the vehicle and called the police. Officer

Michael Dudley responded to the call and found the defendant speeding at an excess of one

hundred and twenty miles per hour down a busy commercial street in town. Due to the

defendant’s excessive speed, the Corolla hit another car head on causing the car to roll over

multiple times. The crash extinguished the life 6 month old Madison while the defendant

suffered a broken collarbone. R. at 4. The defendant had previous run-ins with the law when he

was arrested for shoplifting and disorderly conduct. R. at 3. He was released, due to his youth

and family connections, into the care of his parents and no charges were filed. R. at 3.

At trial, the defendant was found guilty of murder in the second degree, robbery in the

first degree, and kidnapping in the first degree. R. at 4. During the sentencing hearing, the trial

court heard testimony about the defendant and his history. After hearing all of the evidence, the

trial court sentenced the defendant, in its discretion, to life in prison without the possibility of

parole. R. at 6. The defendant claims that this sentence is unconstitutional because it is cruel and

unusual punishment, but the Appellate Court disagreed with this reasoning. The defendant

subsequently appealed to the Texansas Supreme Court. The Supreme Court of Texansas held that

the sentence was not excessive when compared to the crimes the defendant committed and,

further, that the trial court had properly exercised its discretion in applying the sentence.

Moreover, according to Texansas law, no intent to kill is necessary for the prosecution to prove

murder in the second degree when robbery, kidnapping, or burglary has been committed. R. at 5.

The Supreme Court of Texansas affirmed the Appellate Court’s decision and held that the

4

defendant’s punishment was not cruel and unusual punishment and was within the trial court’s

discretion. The defendant subsequently appealed. R. at 6.

SUMMARY OF THE ARGUMENT

The Supreme Court of Texansas was correct in affirming the denial of the defendant’s

petition for a writ of habeas corpus because his sentence of life without parole does not need to

be overturned. The Eighth Amendment of the Constitution protects against excessive sentencing

by prohibiting cruel and unusual punishment. U.S. Const, amend. VIII. This Court’s

jurisprudence has placed categorical bans on certain sentencing practices that involve juvenile

defendants. While this Court has held that the sentence of juvenile life without parole for non-

homicide convictions violates the Eighth Amendment, the sentence as applied to homicide

convictions is still constitutional. This Court has continued to review the matter in recent cases,

but rather than create a categorical ban, it has changed the sentencing practice to allow a

defendant to proffer mitigating factors that the sentencer must consider when sentencing.

This individualized approach to sentencing is in accordance with the Eighth Amendment

because it takes into consideration the evolving standards of decency and the Court’s individual

judgment in assessing whether a sentence is disproportionate. While deference should be given

to the legislature, the court looks to the objective indicia of society in order to evaluate whether

there is a national consensus against the sentence. Homicide, being one of the most severe

crimes, has always been meet with an equally severe punishment. While some states have

changed their position on the sentence, a majority of states have retained the sentence of life

without parole for juvenile defendants. Therefore a national consensus against the sentencing

practice does not exist.

5

In applying their individual judgment, this Court has recognized that there is a distinction

between juvenile and adult offenders. However, a sentence is still considered proportional if is

allows for review of mitigating factors. This Court has recognized that while the sentence may

not be applied to all juvenile defendants after an assessment of the mitigating factors, a

categorical ban would impede justice if a juvenile has committed an egregious crime. All the

states in the majority have changed their sentencing practice to reflect this discretionary

approach and concomitantly reserving the option to apply the sentence, should the opportunity

arise.

For a sanction to be excessive it would have to be cruel and unusual and that is simply

not the case at hand. The state of Texansas created a criminal statute of murder in the second

degree involving the common known rule of felony murder, which was well within its power to

do so. Felony murder allows for a justifiable sentence of murder when a defendant commits a

dangerous felony and in doing so, takes the life of another in the process. Thus, in the interests of

justice, more than a majority of states rely on this rule to deter dangerous felonies and to help

save the lives of innocent collaterals to felons’ decisions. This juvenile defendant was tried and

convicted by a jury of his peers to murder in the second degree and after careful consideration

and the presence of the juveniles youthful and family background, the trial court, in its

discretion, sentenced the defendant to life without parole. What occurred in the Texansas district

court is in accordance with all of the criteria that this Court has set forth thus far regarding the

subject of life without parole for a juvenile.

The felony murder rule has always been applied to cases involving a murder because

even though there is no need to prove intent to kill, a life has been taken by the defendant. There

are times, where even as a juvenile, an individual can act with his own cognitive ability to his

6

surrounding circumstances and do so with a reckless indifference to the life of others. Therefore,

the sentencing of a juvenile defendant convicted of a homicide is constitutional under the Eight

Amendment because its compliance with the new sentencing practices set forth by this Court

ensures that it is not grossly disproportionate and thus, this sentence should be affirmed.

For the following reasons, we ask that this Court affirm the decision of the Supreme

Court of Texansas.

ARGUMENT

I. THE EIGHTH AMENDMENT’S BAN ON CRUEL AND UNUSUAL PUNISHMENT

DOES NOT PROHIBIT DISCRETIONARY SENTENCING OF A JUVENILE TO

LIFE WITHOUT PAROLE.

Sentencing a juvenile offender who has been convicted of homicide to life without parole

is constitutional under the Eighth Amendment because a sentence cannot be deemed excessive

when the sentencer accounts for the individualized mitigating factors of the defendant. The

Eighth Amendment of the United States Constitution states that: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.

Amend. VIII. When a sentence is deemed to be grossly disproportionate it is inherently cruel and

unusual and consequently unconstitutional under the Eighth Amendment.

In assessing whether a sentence is cruel or unusual punishment the court first looks to the

evolving standard of decency to see if the objective indicia of society’s standards has established

a national consensus against the sentencing practice. Miller v. Alabama, 132 S. Ct. 2455, 2474

(2012). The court then looks to its own independent judgment to determine whether the sentence

is excessive. Punishments can be deemed excessive if it (1) makes no measurable contribution to

acceptable goals of punishment or (2) it is grossly out of proportion to the severity of the crime.

Coker v. Georgia 433 U.S. 584, 592 (1977).

7

The Court has had an opportunity to address whether the sentence of life without parole

for a juvenile defendant is facially unconstitutional. This Court in Miller held that mandatory

sentencing of life without parole was unconstitutional, but left the door open for state courts to

apply the sentence where they deemed it necessary after an evaluation of the mitigating factors

on a case-by-case basis. 132 S. Ct. 2455 (2012). Since Miller did not create a categorical ban on

the sentencing practice, discretionary sentencing is not disproportionate and therefore

constitutional.

A. The sentence of juvenile life without the possibility of parole is not cruel and unusual

punishment because the evolving standard of decency demonstrates that there is a

national consensus in support of the sentence.

Discretionary sentencing of a juvenile to life without parole is consistent with the nation’s

evolving standard of decency as emphasized by this Court’s recent jurisprudence and the current

legislative trend. In Trop v. Dulles, this Court acknowledged that what may have been

constitutionally acceptable under the Eighth Amendment when it was first ratified may be cruel

and unusual under today’s standards. 356 U.S. 86 (1958). Chief Justice Warren stated in this

decision that “the Amendment must draw its meaning from the evolving standards of decency

that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958).

In evaluating the evolving standards of decency, the Court examines the “objective indicia

of society’s standards, as expressed in legislative enactments and state practice to determine

whether there is a national consensus against the sentencing practice at issue.” Graham v.

Florida, 130 S. Ct. 2011, 2021 (2012). Within this examination the Court takes into

consideration public opinion in establishing whether there is a trend in favor of abolishing the

sentence. Atkins v. Virginia, 536 U.S. 304, 315-16 (2002).

8

In Stanford v. Kentucky, the Court was tasked with determining whether the Eighth

Amendment prohibits the death penalty for juvenile defendants. 492 U.S. 361, 405 (1989). Their

assessment indicated that twenty-two of thirty-seven death penalty states permitted the death

penalty for sixteen-year-old offenders and that twenty-five of the thirty-seven states permitted

the death penalty for seventeen-year-old offenders. Id. at 370-71. In light of the support for the

sentence, the Court concluded that the contemporary standards of decency did not reflect a

national consensus “sufficient to label a particular punishment cruel and unusual.” Id.

Similarly, in Penry v. Lynaugh, the Court held that the Eighth Amendment did not mandate

the categorical exemption from the death penalty for the mentally retarded. 492 U.S. 302 (1989).

In the Court’s analysis of the national consensus, only two states had enacted laws that banned

the imposition of the death penalty on the mentally retarded convicted of a capital offenses. Id. at

334. The Court added that although fourteen states had rejected capital punishment completely,

this did not provide sufficient evidence of a national consensus on not giving the death penalty to

the mentally retarded. Id. at 334.

The Court revisited the same issue in Atkins v. Virginia. 536 U.S. 304 (2002). In Atkins, the

Court held that the standard of decency had evolved since Penry and now demonstrated that the

execution of the mentally retarded is cruel and unusual punishment. Id. at 314. In evaluating the

objective indicia of society, as expressed in legislative enactment and state practice, the Court

found that only a minority of states permitted the practice, and even in those states it was rare. Id.

at 314-15. Based on this evaluation, the Court decided that the practice of executing of mentally

retarded offenders has become “truly unusual, and […] that the national consensus has developed

against it.” Id. at 316.

9

However, the evolving standards of decency involves more than just an evaluation of

numbers; it measures the direction, speed, and consistency of the change. Id. at 315. In Roper v.

Simmons, the Court held that the imposition of the death penalty on juvenile offenders violated

the Eighth Amendment. 543 U.S. 551, 568 (2005). The Court observed a consistency in the trend

towards abolition of the practice to show the direction of change. Id. at 566. To do this, the Court

looked to death penalty states and saw a significant change in legislation from the time of

Stanford. Id. at 567. At the time Stanford was heard, twenty-seven states had prohibited the

execution of juveniles. Id. The court noted that even where the sentence remained on the books,

its use was infrequent. Id. Therefore, an evaluation of the objective indicia of consensus found

that the national consensus did not support the sentence. Id.

Based on the precedent set by these death penalty cases, the same analysis applies in

assessing the constitutionality of the sentencing juveniles to life without parole. Two cases have

discussed the sentence of juvenile life without parole. The first case is Graham v. Florida, in

which this Court created a categorical ban on the sentence of juvenile life without parole for non-

homicide cases. 560 U.S. 48, 82 (2010). The Court in Graham found six jurisdictions that did not

allow life without parole sentences for juvenile offenders and seven jurisdictions that permitted

juvenile life without parole for homicide crimes. Id. at 62. The Court also found that thirty-seven

states, as well as the District of Columbia, permitted sentences of juvenile life without parole for

a non-homicide offender. The analysis of this nation’s legislation demonstrated that there was no

national consensus against the sentence in practice at issue. Id. However, “[t]here are measure of

consensus other than legislation.” Kennedy v. Louisiana, 128 S. Ct. 2641, 2657 (2008). The

Court looked beyond the current legislative enactments to the actual sentencing practices. Since

there were only 109 juvenile offenders serving life without parole for non-homicide offenses, the

10

Court found that the sentence was infrequent. This infrequency illustrated a consensus against

the use of this sentence. Graham, 560 U.S. 48 at 62. Although there were many statutes on the

books, the Court ultimately decided that due to the small amount of juvenile offenders actually

sentenced to life without parole, the sentence was infrequently used through the states. Because

of this infrequency, the Court found that the majority of the states did not sentence juvenile

offenders to life without parole except for in the most serious cases

The second case is Miller v. Alabama, where this Court held that the mandatory sentencing

of juveniles to life without parole is unconstitutional. 132 S. Ct. at 2455. The Court in Miller did

not place a categorical ban on the sentence of juvenile life without parole. Instead, the Court

contrasted Graham, which had established a categorical ban, from Miller, which changed the

requirements for sentencing. Unlike Graham’s categorical ban on sentencing juveniles to life

without parole for non-homicide offenses, Miller holds that applying a mandatory sentence to

life without parole is unconstitutional. Miller, however, leaves discretionary sentencing up for

debate.

Presently, a national consensus against the sentence of juvenile life without parole has not

been established. In assessing the number of states that retained the sentence of juvenile life

without parole, it is clear that a majority of the nation continues to accept the need for this

sentence in some form or another. Before Miller, seven states did not have or did not use the

sentence of life without parole for juveniles. The Campaign for the Fair Sentencing of Youth,

Facts and Infographics about Life Without parole for Children

http://fairsentencingofyouth.org/what-is-jlwop/ (March 14, 2016, 1:37AM). After the decision in

Miller, only nine states eliminated the sentence. Id. However, thirty-six states have preserved the

sentence for discretionary use. Id.

11

In the four years after the Miller decision, there has been more legislation regarding

retroactively applying the decision in Miller to defendants that were mandatorily sentenced.

Nineteen states have taken the question under review. Id. Nevertheless, these states have not

decided to simply pardon the offenders. Seven states have ruled that Miller does not apply

retroactively, while 12 other states have ruled that Miller should apply retroactively by allowing

convicted offenders to present mitigating factors when determining if they are eligible for parole

in the future. Id. While a trend against the sentence existed immediately after the Miller decision,

that movement has stopped. States have instead embraced the mandate in Miller and tried to

rectify their sentencing practices. This shift is even more evident from this Court’s recent

decision in Montgomery v. Louisiana, where the court affirmed that the decision in Miller should

be applied retroactively. 136 S. Ct. 718, 729 (2016). The opinion in this case emphasized that

“Miller did not foreclose a sentencers ability to impose life without parole on a juvenile.” Id. at

726.

Furthermore, there has been continuous use of the juvenile life without parole sentence. In

2010, there was an estimated 2,445 individuals serving a life without parole sentence for

homicide offenses committed as juveniles. Kallee Spooner, Juvenile Life without Parole,

Undergraduate Review, 8, 74-80 (2012). Currently there are almost 2,600 individuals sentenced

to life without parole. This shows that after the Miller decision, states have continued to enforce

this sentence. The Campaign for the Fair Sentencing of Youth, Facts and Infographics about Life

Without parole for Children http://fairsentencingofyouth.org/what-is-jlwop/ (March 14, 2016,

1:37AM). The change adopted by the majority of states has been to embrace the mandate in

Miller that calls for individualized sentencing and apply it to the current sentencing practice to

ensure that new sentences meet the proportionality requirement of the Eighth Amendment.

12

Since the objective indicia of society demonstrates that the legislative enactments and state

practice are in favor of applying the mandate issued in Miller instead of abolishing the sentence

in its entirety, there is no national consensus against the sentencing practice at issue.

B. Juvenile life without parole is not excessive because the Eighth Amendment’s

proportionality requirement ensures that juveniles are given an opportunity to present

mitigating factors in order to ensure individualized sentencing.

The sentence of juvenile life without parole does not violate the Eighth Amendment’s ban

on cruel and unusual punishment because it is not grossly disproportionate. Proportionality is the

notion that the punishment should fit the crime. “When determining whether a sentence is cruel

and unusual, courts must consider the proportionality of the sentence to the crime committed.”

Graham, 130 S. Ct. at 2021. “The concept of proportionality is central to the Eighth Amendment,

because grossly disproportionate sentences are inherently cruel and unusual.” Miller, 132. S. Ct.

at 2463.

The Court uses its own independent judgment in determining whether a sentence is

disproportionate. Roper, 543 U.S. at 564. This judgment is guided by controlling precedents,

“the Court’s own understanding, and the interpretations of the Eighth Amendment’s text, history,

meaning, and purpose” Kennedy, 554 U.S. at 421. While courts have not always been clear or

consistent in its analysis of proportionality, recent jurisprudence has provided guidance. In this

Court’s plurality decision in Harmelin v. Michigan, Justice Scalia pronounced that the

proportionality analysis in Solem v. Helm was incorrect. 501 U.S. 957, 963 (1991); 463 U.S. 277,

284-286 (1983). Although Justice Scalia argues the Eighth Amendment contains no

proportionality guarantee, the concurrence argues that there five common principals that should

be used during a proportionality review. Harmelin, 501 U.S. 957 at 963. These principals are: (1)

the need for legislative deference, (2) review of legitimate penological schemes, (3) acceptance

13

of the varying results sentencing, (4) the review of objective factors, and (5) consideration of

whether the sentence is grossly disproportionate. Id. at 959.

In this case, the sentencing of a juvenile offender to the sentence of life without parole

adheres to both this Court’s holing in Miller, which required a sentencer to review mitigating

factors during sentencing, as well as the common principles set forth in Harmelin. The Court in

Miller did not require a categorical ban on the sentencing practice of juvenile life without parole.

Rather, the Court held that the mandatory imposition of that sentence was a violation of the

Eighth Amendment. Miller, 132 S. Ct. 2455 at 2464. In making that determination, the Court

looked at Roper and Graham, which both identified that children are constitutionally different

from adults for purposes of sentencing. Id. Roper, Graham, and Miller focused on three objective

factors that made juveniles different from adults. These factors were (1) the offender’s youthful

age and diminish ability, (2) his family and personal background, and (3) his role and actions in

the commission of the crime in question. Brian J. Fuller, General Law Division: Case Note:

Criminal Law—A Small Step Forward in Juvenile Sentencing, But is it enough? The United

States Supreme Court Ends Mandatory Juvenile Life without Parole Sentences; Miller v.

Alabama, 132 S. Ct. 2455 (2012), 13 Wyo. L. Rev. 377, 392 (2013). While all three decisions

concluded that youth matters in considering a sentence’s proportionality, it is simply one factor

among others that should be considered in determining whether the punishment is excessive.

Miller, 132 S. Ct. at 2466.

In the case of homicide, there are several penological justifications for imposing the

sentencing of juvenile life without parole to an offender who committed murder. In assessing this

factor, it is important to recognize that although the categorical ban on life without parole in

Graham applies only to non-homicide cases, the Court “took care to distinguish those offenses

14

from murder, based on both moral culpability and consequential harm.” Id. at 2465. While Miller

states that “the distinctive attributes of youth diminish the penological justifications” for

imposing life without parole on juvenile offenders, the sentence is still justified if it meets a

penological objective. Id. The Court in Harmelin recognizes that federal and state criminal

systems have accorded different weights at different times to the penological goals of retribution,

deterrence, incapacitation, and rehabilitation. 501 U.S. 957, 999 (1991). Hence, the Eighth

Amendment does not require the implementation of any one penological theory; the application

of one would be sufficient.

Accordingly, the penological objectives of incapacitation and deterrence would serve as

strong incentives for state legislatures who want to protect their constituents from offenders who

have been convicted of the crime of homicide. While the Court in Miller acknowledged that a

mandatory sentence neglects the circumstances of homicide offenses, individualized sentencing

allows a sentencer to examine all circumstances before concluding that life without parole is the

appropriate penalty. Miller, 132 S. Ct. 2455 at 2469. The state legislatures have complied with

the mandate in Miller by changing their current statutes to provide an offender with the

opportunity to consider mitigating circumstances. This Court stated in Miller that “Although we

do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to

take into account how children are different [.]” Id. Miller only mandates that the sentencer

follow a certain process … before imposing a particular penalty. Id. at 2474. Since all the states

in the majority have acted in conformity with the mandate set forth in Miller, the Court should

give legislative deference when a sentence enforces this sentence.

The Court in Miller explicitly refused to consider the argument that the Eighth Amendment

requires a categorical bar on life without parole for juveniles. Id. at 2469. While not every

15

juvenile offender may be suitable to serve life without parole in light of their diminished

culpability and heightened capacity for change, this “Court recognized that a sentencer might

encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation

is impossible and life without parole is justified.” Montgomery, 136 S.Ct. at 733. As this Court

recognized earlier this year, life without the possibility of parole is still a proportionate sentence

for a juvenile offender whose crime demonstrates more than transient immaturity. Id. at 734.

Therefore, individualized sentencing that allows for a sentencer to use discretion in evaluating

the mitigating factors offered by a juvenile offender convicted of homicide comports not only

with the mandate in Miller, but with the Eighth Amendment’s ban on excessive sentences and is

constitutional.

II. LIFE IMPRISONMENT WITHOUT PAROLE FOR A JUVENILE DEFENDANT

WHO COMMITS THE CRIME OF FELONY MURDER IS CONSTITUTIONAL

PURSUANT TO THE EIGHTH AMENDMENT.

Sentencing a defendant, even a juvenile, to life in prison without parole is not a cruel and

unusual punishment for the crime of felony murder and is therefore not barred by the Eighth

Amendment of the Constitution. In the Texansas Penal Law, felony murder falls under the

category of murder in the second degree, and is thus considered a crime of homicide for all

purposes of trial. Texansas Penal Law § 125 (2016). This is a widely used criminal statute in

America, as forty-eight out of the fifty states have a felony murder rule in effect. Joshua P.

Gilmore, Murder Felony is Felony Murder: How the Nevada Supreme Court’s decision in Nay v.

State reflects the growing misconception surrounding “afterthought” robbery, 9 Nev. L.J. 672,

678 (2009). Felony murder is a useful tool to obtain justice in situations where a life is taken

during the commission of a felony. This criminal statute in Texansas does not require the intent

to kill to be proven by the state but that does not take away from the defendant’s culpability in

16

the case at bar. The state must prove beyond a reasonable doubt that the defendant committed

one of the underlying dangerous felonies, and here, robbery and kidnapping were proven along

with the fact that a life was taken during the kidnapping and thus the defendant committed the

crime of felony murder.

Furthermore, in Roper, this Court held that it would be cruel and unusual to sentence a

juvenile defendant to death for a crime of murder but noted that without being able to extinguish

the defendants life, a state can take away some of his or hers most basic liberties. Roper v.

Simmons, 543 U.S. 551, 573 (2005). This Court’s decision gives the ability by the eighth

amendment to sentence a juvenile to life in prison without parole for a homicide. Moreover, in

the case at hand, the defendant committed a homicide by way of felony murder, regardless of

whether he intended to kill or not.

Moreover, life without parole for a juvenile is not an excessive sanction when compared to

the crime of felony murder and is therefore not grossly disproportionate. The natures of the

crimes in this case are atrocious and ended with the termination of a six-month-old infant. A

fifteen-year-old defendant terminated this life but his age does not excuse the fact that he was the

sole actor who played a major role in the cause of her death. This Court has rendered that

proportionality has a place in the Eighth Amendment because the “percept of justice that

punishment for crime should be graduated and proportioned to [the] offense.” Graham v.

Florida, 560 U.S. 48, 59 (2010). For justice to be adequately served in this case, the defendant

must serve a sentence of life without parole.

A. Felony murder is an excepted rule that is recognized in forty-eight states because it is

imperative to prevent inherently dangerous felonies and the resulting deaths that often

follow.

The concept of felony murder made its first appearance for the betterment of society in

17

England during the eighteenth century. Emily Keller, Constitutional Sentences for Juveniles

Convicted of Felony Murder in the wake of Roper, Graham & J.D.B., 11 Con. Pub. Int. L.J. 297,

303 (2012). Eventually, this rule made its way over to the United States criminal justice system,

providing that a defendant would be liable for murder if the murder occurred during the

commission of a felony, even without the intent for that murder to occur. Id. at 304. The felony

murder rule has long been recognized in the United States for the purpose of deterring not only

the commission of felonies but to deter negligent and possible accidental killings during such

commissions or flights therefrom. People v. Washington, 62 Cal.2d 777, 790 (1965) (Burke, J.,

dissenting). As of 2008, only two states do not implement the felony murder rule. Gilmore, supra

at 678.

More than half of jurisdictions have criminal statutes that are in sync with the Texansas

statute defining felony murder as a death that was procured during a predicate felony. Guyora

Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403, 501 (2011). The benefit of

these statutes is that each state can determine which felonies are provided therein and they are

usually the inherently dangerous ones. The District of Columbia describes the premise of this

ability is because there are certain violent and dangerous felonies that generally involve a risk of

death. Id. at 504. Texansas, having this ability, chose the dangerous felonies of robbery,

burglary, and kidnapping. Texansas Penal Law § 125 (2016). This Court acknowledged that

during the commission of violent felonies, the possibility of bloodshed is inherent. Tison v.

Arizona, 481 U.S. 127, 151 (1987). Violent felonies occur when the defendant arms himself, just

as the juvenile defendant did here. By driving a car at an excess speed, the defendant in this case

turned that car into a weapon that turned deadly. Id.

In felony murder cases, a death has occurred and justice must be served. Less ambiguity in a

18

felony murder statute will avoid a scenario where a defendant would get away with murder when

he or she causes a death. David Crump & Susan Waite Crump, In Defense of the Felony Murder

Doctrine, 8 Harv. J.L & Pub. Pol’y 359, 372 (1985). The fact that forty-eight states continue to

have a felony murder statute shows that felony murder is a widely accepted rule across the

nation.

B. The plain meaning of Texansas Penal Law §125 (2016) mandates a charge of murder in

the second degree where a defendant commits felony murder, which does not require the

intent to take a life but only that a life be taken.

The state of Texansas has a felony murder doctrine imbedded in its Penal Law; this

allows a defendant to be adequately punished for taking the life of another even in a situation

where he or she did not intend to take a life but did so regardless. Moreover, it must be proven

that the defendant had the intent to commit one of the enumerated felonies in the statute. If

proven, the defendant is guilty of second-degree murder under the felony murder rule. In this

case, the defendant by acting in furtherance of a crime, here robbery and kidnapping,

extinguished the life of a six month old infant and is therefore guilty of felony murder. There

need not be any proof that the defendant intended to extinguish that life; the only requirement is

that the death occurred and that the defendant caused the death during the felony as occurred

here.

The defendant in this case is charged with murder in the second degree pursuant to the

criminal statute in Texansas, which states that

a person is guilty of murder in the second degree when [...] he commits or attempts to

commit robbery, burglary, [or] kidnapping [...] and, in the course of and in furtherance of

such crime or of immediate flight therefrom, he [...] causes the death of a person other

than one of the participants.

Texansas Penal Law § 125. This statute specifically selected three inherently dangerous felonies

19

that in conjunction with a death raise the conviction to the level of felony murder.

This Court has noted that each individual state has the power to define its murder statute

as it sees fit, which allows Texansas to define felony murder as murder in the second degree and

select which felonies should be enumerated in its felony murder statute. See Patterson v. New

York, 432 U.S. 197, 201 (1977) (noting that the Constitution should not intrude on how a state

deals with criminal activity). By each state having the power of regulation for its criminal

statutes, it has the power to define each element that must be proven by the prosecutor in a

particular statute. Id. at 210. For the felony murder statute in Texansas, the state had to, and did,

prove that the defendant committed the crimes of only one felony that is enumerated in the

second-degree murder statute. In this case, the state proved not only one, but two felonies in

front of the district court. First, the elements of robbery in the first degree were proven because

the defendant caused the death of another while in flight therefrom the commission of a robbery.

Texansas Penal Law § 160 (2016). Second, the elements of kidnapping in the first degree were

proven because the defendant abducted another person who died during the abduction. Texansas

Penal Law § 135 (2016).

Furthermore, this Court has noted its prohibition against life imprisonment without parole

for a juvenile defendant that committed a crime that does not involve a homicide. Graham, 560

U.S. at 82 (emphasis added). However, Chief Justice Roberts stated in his concurrence that the

holding in Graham does not mean that a juvenile will never be eligible for life without parole. Id.

at 89. (Roberts, J., concurring). In some cases, some crimes are so heinous and some juvenile

defendants are so highly culpable that the sentence of life without parole is justified under the

Constitution. Rummel v. Estelle, 445 U.S. 263, 272 (1980).

20

Moreover, sentencing this juvenile defendant to life without parole for felony murder is

consistent with this Court’s holding in Miller. While the concurrence mentions the complications

of felony murder, the majority in that case held that a juvenile defendant could not be

mandatorily sentenced to life without parole. Miller v. Alabama, 132 S. Ct. 2455, 2475 (2012)

(emphasis added). This case follows the Miller opinion because the judge had ultimate discretion

in deciding the juvenile defendant’s sentence after having a hearing where the defendant’s youth

was discussed. R. at 6.

In Miller, there were two cases at hand. The first case deals with Kuntrell Jackson. He

was fourteen years old and went to rob a video store with two other boys but he decided to wait

outside the store after learning that another had a shotgun. Miller, 132 S. Ct. at 2460. This boy

who carried the shotgun, shot and killed the store clerk after demanding for money. Id. The

second case deals with another fourteen year old, Evan Miller, who robbed a sleeping man of his

wallet who awoke and grabbed Miller at the throat. Id. at 2462. Miller responded by repeatedly

striking the man with a baseball bat. Id. In both of these cases, the juvenile defendants were

convicted of murder and sentenced to life in prison without parole. However, this Court reversed

both of these sentences because the sentences were mandatory and the trial court had chance to

gather and examine all of the surrounding circumstances of the juvenile and the crime before

sentencing. Id. at 2469.

The Texansas trial court’s decision does not stray away from the holding in Miller

because the juvenile defendant here obtained a discretionary sentence of life without parole after

adhering to the Miller demand of allowing the surrounding circumstances to be discussed. Id.

Furthermore, Kuntrell Jackson was charged on the theory of transferred intent because he

intended to commit the felony of robbery so that satisfies the intent to commit the murder. Id at

21

2460. This is distinguishable from the case at hand because it deals with a killing committed

directly by a juvenile because the defendant here solely caused the death of six month old baby

Madison Taylor.

Furthermore, commentary to the Model Penal Code has stated that in many felony murder

cases, a defendant is either guilty of homicide with an intentional or extremely reckless state of

mind. Model Penal Code §210.2 commentary at 36-37 (Official Draft 1980). This is consistent

with the rules of felony murder created by the common law when they decided not to include any

element stating that the defendant should have the intent to kill. It is not necessary to show the

intent to kill to prove felony murder. Here, the felony murder statute is satisfied because this

juvenile defendant was had an extremely reckless state of mind when causing the death of 6

month old Madison Taylor.

Furthermore, the juvenile defendant here had a blatant disregard for human life when he

drove a vehicle in excess of one hundred and twenty miles per hour on a busy main street. R. at

4. This is a reasonably foreseeable situation where a death could occur and is reckless behavior

according to the Model Penal Code, which states that the individual takes a subjective and

objective unjustifiable risk. Model Penal Code § 2.02(2)(c). The juvenile defendant here took the

risk of stealing and driving a car away onto a busy main street after staying hidden in an alley

behind the store. R. at 4. These actions of kidnapping an infant and causing her death make

felony murder acceptable as murder in the second degree as the Texansas statute proscribes

because felony murder is still murder, when a life is taken without justification.

C. Life without parole for a defendant is constitutional because it is not grossly

disproportionate to the defendant’s crime of felony murder even as a juvenile.

When determining the constitutionality of a defendant’s sentence, this court stated it would

only forbid extreme sentences that are grossly disproportionate to the crime. Harmelin v.

22

Michigan, 501 U.S. 957, 974 (1991). The Eighth Amendment guarantees individuals the right

not to be subjected to excessive sanctions. Miller, 132 S. Ct. at 2463. In this case, the juvenile

defendant is being protected by the Eighth Amendment because his sentence is not overly harsh

compared to the nature of the crime. This Court has stated that there are occasions where it shall

be appropriate to sentence a juvenile to life without parole and this is one of those occasions

because it is not grossly disproportionate. Id. at 2469.

In Miller, it was established that sentencing a juvenile defendant to the harshest possible

penalty may be uncommon but not impossible. Id. Even if this sentence occurs rarely, it should

occur for the crime of murder. This Court has held that a murderer is one who unjustifiably takes

the life of another human. Edmund v. Florida, 458 U.S. 782, 797 (1982). The defendant is

therefore a murderer because although he is a juvenile, he took the life of another with no

justification. He played a major role in the commencement of the robbery and kidnapping, which

he committed with a reckless indifference to human life. Tison, 481 U.S. at 151. In Tison, this

Court found where a defendant played such an active role and acted with reckless indifference to

the value of human life, he could be sentenced to the death penalty.

Life without parole is a less harsh sentence than the death penalty and should be allowed

for a defendant with the same culpable mental state as the defendant in Tison. The defendant in

this case had a high level of participation just as in Tison and that further implicates him in the

resulting death of Madison Taylor. Id. at 158. His degree of “reckless indifference to the value of

human life [is] every bit as shocking to the moral sense as an intent to kill.” Id. at 157. The

juvenile defendant here obtains this heightened degree of culpability and should have foreseen

that death would occur due to his heinous actions.

23

This Court has noted that “defendants who do not kill, intend to kill, or foresee that a life

will be taken are categorically less deserving of the most serious forms of punishment than are

murderers. Graham, 560 U.S. at 69. However, the juvenile defendant here is not less deserving

because even if he did not intend to kill, he should have foreseen that a life could have been

taken. There is more than a “possibility of bloodshed” when it comes to the commission of

inherently dangerous felonies, such as robbery and kidnapping. Tison, 481 U.S. at 151. During

the commission of these felonies, most felons arm themselves and while the juvenile defendant

here did not arm himself with the typical notion of a weapon, he made one. By driving a car

down a busy main street at the speed of one hundred and twenty miles per hour, he turned the car

into a deadly weapon against himself and everyone else on that street. R. at 4.

In Graham, the court noted that adults are different than juveniles because they may be

more reckless than adults, but that does not diminish all of a juvenile’s culpability and should not

absolve a juvenile’s guilt for murder. Graham, 560 U.S. at 68. When an individual turns

eighteen, he does not miraculously become more responsible or conscience of his actions than he

would at a younger age. Moreover, this Court discusses the fact that a fifteen year old is old

enough to be tried as adult in criminal court because that is too old to be tried effectively in

juvenile court for a serious crime. Id. at 65. In Roper, this Court notes that there is an argument

to be made that there can be time where a juvenile defendant will have the maturity and capacity

to demonstrate the depravity of human life. Roper, 543 U.S. at 572.

Furthermore, there can be no bright line in determining when a juvenile reaches his or her

state of maturity because every individual varies and grows at different levels. This does not

mean that a fifteen year old should not get life without parole when he commits a murder, albeit

in this case of felony murder. This Court has decided that life without parole is the second most

24

severe punishment by law but it is not the first. Harmelin, 501 U.S. at 996. For life without

parole there is always the chance for executive clemency or a later reduction of the sentence. Id.

Moreover, life with the possibility of parole is only the third most severe because parole is only a

possibility and not definite.

In a case of felony murder, as in the case at hand, life is over for the victim. Edmund, 458

U.S. at 797. Here, there are two victims because not only was Madison’s own life taken but

Pamela is also a victim, for she has lost her daughter. By sentencing this defendant to life

without parole, the life of the juvenile is not being taken away even though he is the murderer

and not the victim. The defendant here has grown up with wealth and prominence and the ability

to escape criminal liability from his prior actions but he cannot escape the consequences of

murder when committed during his crimes of robbery and kidnapping. Therefore, the sentence of

life without parole is not grossly disproportionate to the crime of felony murder for a juvenile

defendant when he acted with the same reckless state of mind as an adult may do.

25

CONCLUSION

For the foregoing reasons, this Court should affirm the holding of the Supreme Court of

Texansas.

/S/

March 14, 2016